396 U.S.

320
90 S.Ct. 518
24 L.Ed.2d 549

Willie CARTER et al., Appellants,

v.
JURY COMMISSION OF GREENE COUNTY et al.
No. 30.
Argued Oct. 21, 1969.
Decided Jan. 19, 1970.

Norman C. Amaker, New York, N.Y., for appellants.

Leslie Hall, Montgomery, Ala., for appellees.
Mr. Justice STEWART delivered the opinion of the Court.

The appellants, Negro citizens of Greene County, Alabama, commenced this

class action against officials charged with the administration of the State's
juryselection laws: the county jury commissioners and their clerk, the local
circuit court judge, and the Governor of Alabama. The complaint alleged that
the appellants were fully qualified to serve as jurors and desired to serve, but
had never been summoned for jury service. It charged that the appellees had
effected a discriminatory exclusion of Negroes from grand and petit juries in
Greene Countythe Governor in his selection of the county jury commission,
and the commissioners and judge in their arbitrary exclusion of Negroes. The
complaint sought (1) a declaration that qualified Negroes were systematically
excluded from Greene County grand and petit juries, that the Alabama statutes
governing jury selection were unconstitutional on their face and as applied, and
that the jury commission was a deliberately segregated governmental agency;
(2) a permanent injunction forbidding the systematic exclusion of Negroes from
Greene County juries pursuant to the challenged statutes and requiring that all
eligible Negroes be placed on the jury roll; and (3) an order vacating the
appointments of the jury commissioners and compelling the Governor to select
new members without racial discrimination.
Alabama's jury-selection procedure is governed by statute. Ala. Code, Tit. 30,

1 et seq. (1958 and Supp. 1967). The Governor appoints a three-member jury
commission for each county. 810. The commission employs a clerk, 15,
who is charged with the duty of obtaining the name of every citizen of the
county over 21 and under 65 years of age, together with his occupation and
places of residence and business. 18. The clerk must 'scan the registration
lists, the lists returned to the tax assessor, any city directories, telephone
directories and any and every other source of information from which he may
obtain information * * *.' 24. He must also 'visit every precinct at least once a
year to enable the jury commission to properly perform the duties required of it
* * *.' Ibid.1 Once the clerk submits his list of names, the commission is under
a duty to prepare a jury roll and jury box containing the names of all qualified,
nonexempt citizens in the county, 20, 24, who are 'generally reputed to be
honest and intelligent and are esteemed in the community for their integrity,
good character and sound judgment * * *.' 21.2

A three-judge District Court, convened pursuant to 28 U.S.C. 2281 and

2284, conducted an extensive evidentiary hearing on the appellants' complaint.
The record fully supports the trial court's conclusion, set out in its detailed
opinion, that the jury-selection process as it actually operated in Greene County
at the outset of this litigation departed from the statutory mandate in several
respects:

'The clerk does not obtain the names of all potentially eligible jurors as
provided by 18, in fact was not aware that the statute directed that this be
done and knew of no way in which she could do it. The starting point each year
is last year's roll. Everyone thereon is considered to be qualified and remains on
the roll unless he dies or moves away (or, presumably, is convicted of a
felony). New names are added to the old roll. Almost all of the work of the
commission is devoted to securing names of persons suggested for
consideration as new jurors. The clerk performs some duties directed toward
securing such names. This is a part-time task, done without compensation, in
spare time available from performance of her duties as clerk of the Circuit
Court. She uses voter lists but not the tax assessor's lists. Telephone directories
for some of the communities are referred to, city directories not at all since
Greene County is largely rural.

'The clerk goes into each of the eleven beats or precincts annually, usually one
time. Her trips out into the county for this purpose never consume a full day. At
various places in the county she talks with persons she knows and secures
suggested names. She is acquainted with a good many Negroes, but very few
'out in the county.' She does not know the reputation of most of the Negroes in
the county. Because of her duties as clerk of the Circuit Court the names and

reputations of Negroes most familiar to her are those who have been convicted
of crime or have been 'in trouble.' She does not know any Negro ministers, does
not seek names from any Negro or white churches or fraternal organizations.
She obtains some names from the county's Negro deputy sheriff.
6

'The commission members also secure some names, but on a basis no more
regular or formalized than the efforts of the clerk. The commissioners 'ask
around,' each usually in the area of the county where he resides, and secure a
few names, chiefly from white persons. Some of the names are obtained from
public officials, substantially all of whom are white.

'One commissioner testified that he asked for names and that if people didn't
give him names he could not submit them. He accepts pay for one day's work
each year, stating that he does not have a lot of time to put on jury commission
work. * * * He takes the word of those who recommend people, checks no
further and sees no need to check further, considering that he is to rely on the
judgment of others. He makes no inquiry or determination whether persons
suggested can read or write * * *. Neither commissioners nor clerk have any
social contacts with Negroes or belong to any of the same organizations.

'Through its yearly meeting in August, 1966, the jury commission met once
each year usually for one day, sometimes for two, to prepare a new roll. New
names presented by clerk and commissioners, and some sent in by letter, were
considered. The clerk checked them against court records of felony convictions.
New names decided upon as acceptable were added to the old roll. The names
of those on the old roll who had died or moved away were removed.

'At the August, 1966 meeting one commissioner was new and submitted no
names, white or Negro, and merely did clerical work at the meeting. Another
had been ill and able to seek names little if at all. The third could remember one
Negro name that he suggested. This commissioner brought the name, or names,
he proposed on a trade bill he had received, and after so using it threw it away.
All lists of suggested names were destroyed. As a result of that meeting the
number of Negro names on the jury roll increased by 37. * * * Approximately
32 of those names came from lists given the clerk or commissioners by others.
The testimony is that at the one-day August meeting the entire voter list was
scanned. It contained the names of around 2,000 Negroes.

10

'Thus in practice, through the August, 1966 meeting the system operated
exactly in reverse from what the state statutes contemplate. It produced a small
group of individually selected or recommended names for consideration. Those

potentially qualified but whose names were never focused upon were given no
consideration. Those who prepared the roll and administered the system were
white and with limited means of contact with the Negro community. Though
they recognized that the most pertinent information as to which Negoes do, and
which do not, meet the statutory qualifications comes from Negroes there was
no meaningful procedure by which Negro names were fed into the machinery
for consideration or effectual means of communication by which the knowledge
possessed by the Negro community was utilized. In practice most of the work
of the commission has been devoted to the function of securing names to be
considered. Once a name has come up for consideration it usually has been
added to the rolls unless that person has been convicted of a felony. The
function of applying the statutory criteria has been carried out only in part, or by
accepting as conclusive the judgment of others, and for some criteria not at all.'3
11

The District Court's further findings demonstrated the impact of the selection
process on the racial composition of Greene County juries. According to the
1960 census, Negroes composed threefourths of the county's population. Yet
from 1961 to 1963 the largest number of Negroes ever to appear on the jury list
was about 7% of the total. The court noted that in 1964 a single-judge federal
district court had entered a declaratory judgment setting forth the duties of the
jury commissioners and their clerk under Alabama law, instructing them not to
pursue a course of conduct operating to discriminate against Negroes,
forbidding them to employ numerical or proportional limitations with respect to
race, and directing an examination of the jury roll for compliance with the
judgment.4 Thereafter, the situation had improved only marginally. In 1966
only 82 Negroes appeared among the 471 citizens listed on the jury roll; 50%
of the white male population of the county found its way to the jury roll in that
year, but only 4% of the Negro. 5 In 1967, following a statutory amendment, the
commission added women to the jury roll. Upon the expansion of the list,
Negroes composed 388 of the 1,198 potential jurorsstill only 32% of the
total, even though the 1967 population of the county was estimated to be about
65% Negro.6

12

The District Court found that 'there is invalid exclusion of Negroes on a racially
discriminatory basis.' It enjoined the jury commissioners and their clerk from
systematically excluding Negroes from the jury roll, and directed them 'to take
prompt action to compile a jury list * * * in accordance with the laws of
Alabama and * * * constitutional principles'; to file a jury list so compiled
within 60 days, showing the information required by Alabama law for each
potential juror, together with his race and, if available, his age; and to submit a
report setting forth the procedure by which the commission had compiled the
list and applied the statutory qualifications and exclusions.

13

The court declined, however, either to enjoin the enforcement of the challenged
Alabama statutory provisions or to direct the Governor to appoint Negroes to
the jury commission. From these rulings the appellants took a direct appeal to
this Court pursuant to 28 U.S.C. 1253. We noted probable jurisdiction. 393
U.S. 1115, 89 S.Ct. 990, 22 L.Ed.2d 120.7

14

* This is the first case to reach the Court in which an attack upon alleged racial
discrimination in choosing juries has been made by plaintiffs seeking
affirmative relief, rather than by defendants challenging judgments of criminal
conviction on the ground of systematic exclusion of Negroes from the grand
juries that indicted them,8 the trial juries that found them guilty, 9 or both.10 The
District Court found no barrier to such a suit, and neither do we. Defendants in
criminal proceedings do not have the only cognizable legal interest in
nondiscriminatory jury selection. People excluded from juries because of their
race are as much aggrieved as those indicted and tried by juries chosen under a
system of racial exclusion. 11 Surely there is no jurisdictional or procedural bar
to an attack upon systematic jury discrimination by way of a civil suit such as
the one brought here. The federal claim is bottomed on the simple proposition
that the State, acting through its agents, has refused to consider the appellants
for jury service solely because of their race. Whether jury service be deemed a
right, a privilege, or a duty, the State may no more extend it to some of its
citizens and deny it to others on racial grounds than it may invidiously
discriminate in the offering and withholding of the elective franchise.12 Once
the State chooses to provide grand and petit juries, whether or not
constitutionally required to do so,13 it must hew to federal constitutional criteria
in ensuring that the selection of membership is free of racial bias.14 The
exclusion of Negroes from jury service because of their race is 'practically a
brand upon them * * *, an assertion of their inferiority * * *.'15 That kind of
discrimination contravenes the very idea of a jury'a body truly representative
of the community,'16 composed of 'the peers or equals of the person whose
rights it is selected or summoned to determine; that is, of his neighbors, fellows,
associates, persons having the same legal status in society as that which he
holds.'17

II
15

On the merits, the appellants argue that the District Court erred in refusing to
invalidate the Alabama statute requiring the jury commissioners to select for
jury service those persons who are 'generally reputed to be honest and
intelligent and * * * esteemed in the community for their integrity, good
character and sound judgment * * *.' Ala.Code, Tit. 30, 21 (Supp.1967). The
appellants say 21 is unconstitutional on its face because, by leaving

Alabama's jury officials at large in their selection of potential jurors, it provides

them an opportunity to discriminate on the basis of racean opportunity of
which they have in fact taken advantage.18 Specifically, the charge is that 21
leaves the commissioners free to give effect to their belief that Negroes are
generally inferior to white people and so less likely to measure up to the
statutory requirements;19 to the commissioners' fear that white people in the
community will suffer if Negroes are accorded the opportunity to exercise the
power of their majority;20 and to the commissioners' preference for Negroes
who tend not to assert their right to legal and social equality.21 The appellants
say the injunctive relief granted by the District Court is inadequate, because the
history of jury selection in Greene County demonstrates a practice of
discrimination persisting despite the federal court's prior grant of declaratory
relief. Moreover, so long as 21 remains the law, it is argued, Negro Citizens
throughout Alabama will be obliged to attack the jury-selection process on a
county-by-county basis, thereby imposing a heavy burden on already congested
court dockets and delaying the day that Alabama will be free of discriminatory
jury selection.22
16

While there is force in what the appellants say, we cannot agree that s 21 is
irredeemably invalid on its face. It has long been accepted that the Constitution
does not forbid the States to prescribe relevant qualifications for their jurors.23
The States remain free to confine the selection to citizens, to persons meeting
specified qualifications of age and educational attainment,24 and to those
possessing good intelligence, sound judgment, and fair character.25 'Our duty to
protect the federal constitutional rights of all does not mean we must or should
impose on states our conception of the proper source of jury lists, so long as the
source reasonably reflects a crosssection of the population suitable in character
and intelligence for that civic duty.'26

17

Statutory provisions such as those found in 21 are not peculiar to Alabama, or

to any particular region of the country. Nearly every State requires that its
jurors be citizens of the United States,27 residents of the locality,28 of a
specified minimum age,29 and able to understand English.30 Many of the States
require that jurors be of 'good character' or the like;31 some, that they be
'intelligent'32 or 'well informed.'33

18

Provisions of similar breadth have been challenged here and sustained before.
In Franklin v. South Carolina,34 the Court rejected a similar attack upon a juryselection statute alleged by the plaintiff in error to have conferred arbitrary
power upon the jury commissioners. The pertinent law there provided that the
commissioners should 'prepare a list of such qualified electors under the
provisions of the Constitution, between the ages of twenty-one and sixty-five

years, and of good moral character, of their respective counties as they may
deem otherwise well qualified to serve as jurors, being persons of sound
judgment and free from all legal exceptions, which list shall include not less
than one from every three of such qualified electors * * *.' In upholding the
validity of these standards, the Court said:
19

'We do not think there is anything in this provision of the statute having the
effect to deny rights secured by the Federal Constitution. * * * There is nothing
in this statute which discriminates against individuals on account of race or
color or previous condition, or which subjects such persons to any other or
different treatment than other electors who may be qualified to serve as jurors.
The statute simply provides for an exercise of judgment in attempting to secure
competent jurors of proper qualifications.'35

20

Again, in Smith v. Texas,36 we dealt with a statute leaving a wide range of

choice to the commissioners.37 Yet we expressly upheld the validity of the law.
The statutory scheme was not in itself unfair; it was 'capable of being carried
out with no racial discrimination whatsoever.'38

21

No less can be said of the statutory standards attacked in the present case.
Despite the overwhelming proof the appellants have adduced in support of their
claim that the jury clerk and commissioners have abused the discretion that
Alabama law confers on them in the preparation of the jury roll, we cannot say
that 21 is necessarily and under all circumstances invalid. The provision is
devoid of any mention of race.39 Its antecedents are of ancient vintage,40 and
there is no suggestion that the law was originally adopted or subsequently
carried forward for the purpose of fostering racial discrimination.41 The federal
courts are not incompetent to fashion detailed and stringent injunctive relief
that will remedy any discriminatory application of the statute at the hands of
the officials empowered to administer it.42 In sum, we cannot conclude, even on
so compelling a record as that before us, that the guarantees of the Constitution
can be secured only by the total invalidation of the challenged provisions of
21.

III
22

The appellants also attack the composition of the Greene County jury
commission. They urge that the record demonstrates the causal relation
between the conceded absence of Negroes from the commission for at least the
past decade and the systematic racial discrimination in the selection of potential
jurors established before the District Court. It is argued that even the bestintentioned white jury commissioners are unlikely to know many Negroes who

satisfy the statutory qualifications and that white jury officials in Alabama
generally regard Negroes as incapable of satisfying the prerequisites for jury
membership. Having shown a course of continuing and consistent disregard of
statutory and constitutional standards on the part of the Greene County jury
commissioners and the clerk, the appellants contend that if the discretionary
provisions of 21 are to remain the law, it is essential that the jury commission
be representative of the community in which it functions, particularly in an area
such as Greene County, where Negroes constitute a majority of the population.
The District Court erred, the appellants say, in not ordering the Governor of
Alabama to appoint Negroes to the Greene County jury commission.
23

The claim was not presented to the District Court in precisely these terms.
There the appellants did not urge that white commissioners could not perform
their statutory task in an unbiased manner in a predominantly Negro county.
Rather, they contended that the Governor of Alabama had deliberately
appointed a segregated jury commission in exercising the discretion conferred
upon him by statute. The argument, in short, went to the alleged racial
discrimination in the appointment of the commission, not to the biases inherent
in a commission composed entirely of white people, without regard to claimed
discriminatory selection by the Governor.

24

For present purposes we may assume that the State may no more exclude
Negroes from service on the jury commission because of their race than from
the juries themselves. But the District Court found the appellants had shown
only that for many years the jury commission had been composed entirely of
white men, and concluded that without more the appellants' attack failed for
want of proof. We think that ruling was correct. Quite apart from the problems
that would be involved in a federal court's ordering the Governor of a State to
exercise his discretion in a particular way, we cannot say on this record that the
absence of Negroes from the Greene County jury commission amounted in
itself to a prima facie showing of discriminatory exclusion. The testimony
before the District Court indicated that the Governor had appointed no Negroes
to the Greene County commission during the 12 years preceding the
commencement of suit. But the appellants' trial counsel conceded that he could
not prove his charge of discriminatory selection without the testimony of the
Governor.43 Whether or not such a concession was necessary, the statement
may well have led counsel for the appellees to conclude that they were not
obliged to produce witnesses on the State's behalf with respect to this phase of
the appellants' case.

25

Nor can we uphold the appellants' present contention that, apart from the
question of discrimination in the composition of the jury commission, the

absence of Negroes from the commission compelled the District Court to order
the appointment of Negro commissioners. The appellants are no more entitled
to proportional representation by race on the jury commission than on any
particular grand or petit jury.44
IV
26

There remains the question of the propriety of the relief afforded the appellants
by the District Court. The court, as we have noted, enjoined the jury clerk and
commissioners from systematically excluding Negroes from the Greene County
jury roll, and directed them 'to take prompt action to compile a jury list * * * in
accordance with the laws of Alabama and * * * constitutional principles. * *
*'45 Pursuant to the court's order, the commission submitted a new jury roll,
dated November 6, 1968. The clerk stated she had been into each of the
precincts of Greene County and had contacted people of both races by personal
visit, letter, or telephone; with their recommendations and with the help of the
voting list and telephone directory, the commission compiled a new jury roll.
Whether this roll complies with the terms of the District Court's decree is a
matter for that court to consider in the first instance. The court properly
recognized that other and further relief might be appropriate. For that court 'has
not merely the power but the duty to render a decree which will so far as
possible eliminate the discriminatory effects of the past as well as bar like
discrimination in the future.'46
Accordingly, the judgment below is

27

Accordingly, the judgment below is of the appellants to seek modification of

the District Court's decree as circumstances may require.

28

It is so ordered.

29

Mr. Justice BLACK, concurring.

30

I concur in the judgment and opinion of the Court except insofar as it may leave
an implication that this Court has the power to vacate a state governor's
appointment of jury commissioners or the power to compel the governor of a
State to appoint Negroes or any other persons to the office of jury
commissioner. In my judgment the Constitution no more grants this Court the
power to compel a governor to appoint or reject a certain individual or a
member of any particular group than it grants this Court the power to compel
the voters of a State to elect or defeat a particular person or a member of a

particular group.
31

Mr. Justice DOUGLAS, dissenting in part.

32

There comes a time when an organ or agency of state law has proved itself to
have such a racist mission that it should not survive constitutional challenge.
The instances are not numerous in our history. But they have appeared. One
was present in Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817, 13
L.Ed.2d 709, where a state constitution required every voter who applied to
register to 'be able to understand' as well as 'give a reasonable interpretation' of
any section of the State or Federal Constitution 'when read to him by the
registrar.' Id., at 149, 85 S.Ct. at 820. This interpretation test had had a history
of depriving 'otherwise qualified Negro citizens of their right to vote,' id., at
150, 85 S.Ct. at 820, and was deemed incapable of fair application through
policing by injunction. Id., at 150, 85 S.Ct. at 821 n. 9. We therefore struck it
down.

33

The District Court in the instant case held that '(t)he attack on racial
composition of the (jury) commission fails for want of proof. No proof was
adduced except that the commission in Greene County now is and for many
years has been composed entirely of white men appointed by the governor.' 298
F.Supp. 181, 192. But, as the opinion of the Court states, the record shows
much more: it demonstrates a systematic exclusion of Negroes from juries in
Greene County even though the Negroes outnumber the whites by two to one. It
shows (1) that the white jury officials consistent with southern racial patterns
had little, if any, contacts with Negroes; (2) that the officials knew very few
Negroes and practically nothing about the black community; (3) that only a few
Negroes were contacted to secure black names for jury listing; (4) that in
applying the statutorily created subjective standards, the white jury officials
relied, not only on their own subjective judgments, but also on the subjective
judgments of other people; (5) that few Negroes could be expected to pass
muster under these standards; and (6) that, as stated by the Court, '(i)n 1966
only 82 Negroes appeared among the 471 citizens listed on the jury roll; 50%
of the white male population of the county found its way to the jury roll in that
year, but only 4% of the Negro. In 1967, following a statutory amendment, the
commission added women to the jury roll. Upon the expansion of the list,
Negroes composed 388 of the 1,198 potential jurorsstill only 32% of the
total, even though the 1967 population of the county was estimated to be about
65% Negro.' Ante, at 327-328.

34

I cannot see any solution to the present problem, unless the jury commission is
by law required to be bi-racial. In the Kingdom of Heaven, an all-white or an

all-black commission could be expected to do equal justice to all races in the

selection of people 'generally reputed to be honest and intelligent' and 'esteemed
in the community for their integrity, good character and sound judgment.'
Ala.Code, Tit. 30, 21 (Supp. 1967). But, where there exists a pattern of
discrimination, an all-white or all-black jury commission in these times
probably means that the race in power retains authority to control the
community's official life, and that no jury will likely be selected that is a true
cross-section of the community.
35

We have often said that no jury need represent proportionally a cross-section of

the community.1 See Swain v. Alabama, 380 U.S. 202, 208209, 85 S.Ct. 824,
829830, 13 L.Ed.2d 759; Cassell v. Texas, 339 U.S. 282, 286287, 70 S.Ct.
629, 631632, 94 L.Ed. 839. Jury selection is largely by chance; and no
matter what the race of the defendant, he bears the risk that no racial
component, presumably favorable to him, will appear on the jury that tries him.
The law only requires that the panel not be purposely unrepresentative. See
Whitus v. Georgia, 385 U.S. 545, 550, 87 S.Ct. 643, 646, 17 L.Ed.2d 599.
Those finally chosen may have no minority representation as a result of the
operation of chance, challenges for cause, and peremptory challenges.

36

The problem in the present case is to keep the selective process free of any
racist influence. That implicates the jury commission that has continuing
oversight over the operation of the jury system.

37

I expressed my doubts in Sellers v. Laird, 395 U.S. 950, 89 S.Ct. 2022, 23

L.Ed.2d 470, whether under the Selective Service System an all-white board
could be expected to do equal justice to Negro registrants, at least as respects
many problems. Those doubts are resolved here, because of the established
pattern of racial discrimination which this all-white jury commission has
credited to it. India has handled this type of problem by constitutional
amendment.2 But our constitutional mandate against racial discrimination is
sufficient without more.

38

Where the challenged state agency, dealing with the rights and liberties of the
citizen, has a record of racial discrimination, the corrective remedy is
proportional representation. Under our Constitution that would indeed seem to
be the only effective control over the type of racial discrimination long
practiced in this case.

39

I would not write a decree that requires a governor to name two Negroes out of
three commissioners. I would go no further than to strike down this jury

commission system, because it does not provide for proportional representation

of the two races.

'The sole purpose of these requirements is to insure that the jury commissioners
will have as complete a list as possible of names, compiled on an objective
basis, from which to select qualified jurors.' Mitchell v. Johnson, D.C., 250
F.Supp. 117, 123.

The commission may not select any person who is under 21, a habitual
drunkard, unfit to discharge a juror's duties because afflicted with a permanent
disease or physical weakness, or unable to read English, nor anyone who has
been convicted of an offense involving moral turpitude. A person who would
be disqualified only because he cannot read English is still eligible for jury
service if he is a freeholder or householder. A person over 65 may not be
required to serve but is eligible if he is willing to do so. 21. The commission
is also required to exempt various classes of persons, based on their occupation,
unless they consent to serve. 3. In addition, the court may excuse any person
who appears to be unfit to serve on a jury, or who is disqualified or exempt, 'or
for any other reasonable or proper cause * * *.' 4, 5.
Until 1966 only men were eligible for service. The blanket exclusion of women
was declared unconstitutional in White v. Crook, D.C., 251 F.Supp. 401, 408
409; thereafter Alabama amended its statutes to render women eligible. 21
(1). The trial judge may, however, excuse them from jury duty for good cause
shown. 21.
The requirement that the commission place the name of every qualified,
nonexempt person on the jury roll is permissive, not mandatory, in that the jury
commission's failure to do so does not, absent fraud or denial of constitutional
rights, compel the quashing of the indictment or venire. Fikes v. State, 263 Ala.
89, 95, 81 So.2d 303, 309, rev'd on other grounds, 352 U.S. 191, 77 S.Ct. 281,
1 L.Ed.2d 246; see Swain v. Alabama, 380 U.S. 202, 207, 85 S.Ct. 824, 828, 13
L.Ed.2d 759 n. 3; White v. Crook, supra, 251 F.Supp. at 403 n. 6; Mitchell v.
Johnson, supra, 250 F.Supp. at 119 n. 5.

Bokulich v. Jury Commission of Greene County, D.C., 298 F.Supp. 181, 187
188. (Footnotes omitted.)

Coleman v. Barton, No. 634 (N.D.Ala.1964). The opinion is unreported. See

298 F.Supp., at 184.

In 1966 Alabama still limited jury service to males. See n. 2, supra.

The District Court rejected the appellees' contention that an emigration of

younger and better-educated Negroes from the county in the 1960's accounted
for the disparity between the racial composition of the county in 1960 and of
the jury rolls during the succeeding years of the decade. 298 F.Supp., at 188.
See Coleman v. Alabama, 389 U.S. 22, 23, 88 S.Ct. 2, 3, 19 L.Ed.2d 22.

Other plaintiffs in the suit sought similar relief, as well as an injunction to

prevent the grand jury from considering charges of grand larceny then
outstanding against them. The District Court denied relief with respect to those
plaintiffs, and they took a separate appeal. We affirmed that portion of the
District Court's judgment last Term, and those plaintiffs are no longer before
us. Bokulich v. Jury Commission of Greene County, 394 U.S. 97, 89 S.Ct. 767,
22 L.Ed.2d 109 (per curiam).

Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77 (per
curiam); Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991;
Reece v. Georgia, 350 U.S. 85, 87, 76 S.Ct. 167, 169, 100 L.Ed. 77; Cassell v.
Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; Hill v. Texas, 316 U.S. 400,
404, 406, 62 S.Ct. 1159, 1161, 1162, 86 L.Ed. 1559; Smith v. Texas, 311 U.S.
128, 129130, 61 S.Ct. 164, 165, 85 L.Ed. 84; Pierre v. Louisiana, 306 U.S.
354, 356358, 362, 59 S.Ct. 536, 537538, 540, 83 L.Ed. 757; Rogers v.
Alabama, 192 U.S. 226, 231, 24 S.Ct. 257, 258, 48 L.Ed. 417; Carter v. Texas,
177 U.S. 442, 447, 20 S.Ct. 687, 689, 44 L.Ed. 839; Bush v. Kentucky, 107
U.S. 110, 121, 1 S.Ct. 625, 634, 27 L.Ed. 354.

Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244; Hollins v.
Oklahoma, 295 U.S. 394, 55 S.Ct. 784, 79 L.Ed. 1500 (per curiam).

10

Sims v. Georgia, 389 U.S. 404, 407408, 88 S.Ct. 523, 525 526, 19 L.Ed.2d
634; Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599; Swain v.
Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759; Coleman v. Alabama,
377 U.S. 129, 84 S.Ct. 1152, 12 L.Ed.2d 190; Patton v. Mississippi, 332 U.S.
463, 68 S.Ct. 184, 92 L.Ed. 76; Hale v. Kentucky, 303 U.S. 613, 58 S.Ct. 753,
82 L.Ed. 1050 (per curiam); Norris v. Alabama, 294 U.S. 587, 589, 55 S.Ct.
579, 580, 79 L.Ed. 1074; Martin v. Texas, 200 U.S. 316, 319, 26 S.Ct. 338,
339, 50 L.Ed. 497; Neal v. Delaware, 103 U.S. 370, 396397, 26 L.Ed. 567;
Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664.

11

Billingsley v. Clayton, 5 Cir., 359 F.2d 13, 16 (en banc); Jewell v. Stebbins,
D.C., 288 F.Supp. 600, 604605; White v. Crook, D.C., 251 F.Supp. 401, 405
406; Mitchell v. Johnson, D.C., 250 F.Supp. 117, 121. See Kuhn, Jury
Discrimination: The Next Phase, 41 S.Cal.L.Rev. 235, 247249; Note, The
Congress, The Court and Jury Selection: A Critique of Titles I and II of the

Civil Rights Bill of 1966, 52 Va.L.Rev. 1069, 10841094 (1966).

12

Cf. Carrington v. Rash, 380 U.S. 89, 91, 85 S.Ct. 775, 777, 13 L.Ed.2d 675;
Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 5051, 79
S.Ct. 985, 989990, 3 L.Ed.2d 1072; Pope v. Williams, 193 U.S. 621, 632, 24
S.Ct. 573, 575, 48 L.Ed. 817.

13

Compare Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491,
with Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232.

14

See Ex parte Virginia, 100 U.S. 339, 346347, 25 L.Ed. 676; Virginia v.
Rives, 100 U.S. 313, 321, 25 L.Ed. 667.

15

Strauder v. West Virginia, supra, 100 U.S. at 308.

16

Smith v. Texas, supra, 311 U.S. at 130, 61 S.Ct. at 165.

17

Strauder v. West Virginia, supra. Congress, recognizing such a right, has long
provided a criminal sanction for its violation:
'No citizen possessing all other qualifications which are or may be prescribed
by law shall be disqualified for service as grand or petit juror in any court of the
United States, or of any State on account of race, color, or previous condition of
servitude; and whoever, being an officer or other person charged with any duty
in the selection or summoning of jurors, excludes or fails to summon any
citizen for such cause, shall be fined not more than $5,000.' 18 U.S.C. 243.

18

Cf. Whitus v. Georgia, supra, 385 U.S. at 552, 87 S.Ct. at 647.

19

Cf. Witcher v. Peyton, 4 Cir., 405 F.2d 725, 727.

20

Cf. Gray v. Main, D.C., 309 F.Supp. 207, 224.

21

Cf. Brooks v. Beto, 5 Cir., 366 F.2d 1, 27 (Wisdom, J., concurring in result),
cert. denied, 386 U.S. 975, 87 S.Ct. 1169, 18 L.Ed.2d 135.

22

According to the appellants, civil suits challenging alleged racial discrimination

in jury selection have been commenced in federal district courts throughout
Alabama.

23

Brown v. Allen, 344 U.S. 443, 473, 73 S.Ct. 397, 415, 97 L.Ed. 469 (opinion of
Mr. Justice Reed, announcing judgment); Cassell v. Texas, supra, 339 U.S. at
291, 70 S.Ct. at 633 (Frankfurter, J., concurring in judgment); Virginia v. Rives,
supra, 100 U.S. at 334335 (Field, J., concurring in judgment); Strauder v.
West Virginia, supra, 100 U.S. at 310.

24
25

Neal Delaware, supra, 103 U.S. at 386; Strauder v. West Virginia, supra.
Gibson v. Mississippi, 162 U.S. 565, 589, 16 S.Ct. 904, 909, 40 L.Ed. 1075.
The federal courts have upheld similar qualifications in reviewing their own
jury-selection system. See, e.g., United States v. Flynn, 216 F.2d 354, 388
(C.A.2d Cir.) (Harlan, J.), cert. denied, 348 U.S. 909, 75 S.Ct. 295, 99 L.Ed.
713; United States v. Dennis, 183 F.2d 201, 220 (C.A.2d Cir.) (L. Hand, J.),
cert. granted, limited to other grounds, 340 U.S. 863, 71 S.Ct. 91, 95 L.Ed. 630.

26

Brown v. Allen, supra, 344 U.S. at 474, 73 S.Ct at 416 (opinion of Mr. Justice
Reed, announcing judgment).

27

See, e.g., Ariz.Rev.Stat. Ann. 21201 (1956); Wis.Stat.Ann. 255.01(1)

(Supp. 1969).

28

See, e.g., Cal.Civ.Proc.Code 198 (1954); Wash.Rev.Code 2.36.070(2)

(1956).

29

E.g., Colo.Rev.Stat.Ann. 7811(1) (1963) (21 years old); Md.Ann.Code,

Art. 51, 1 (1968 Repl.Vol.) (25 years); Hawaii Rev.Stat. 6091(1) (1968)
(20 years); Neb.Rev.Stat. 25 1601(1) (1964) (25 years); R.I.Gen. Laws Ann.
991 (1956) (same).

30

See, e.g., Pa.Stat.Ann., Tit. 17, 1322 (1962). Vermont has delegated the
function of determining qualifications to court administrators. Vt.Stat.Ann., Tit.
4, 902 (Supp. 1969).

31

Ariz.Rev.Stat.Ann. 21201 (1956); Ark.Stat.Ann. 39 206 (1962

Repl.Vol.); Conn.Gen.Stat.Rev. 51217 (1968); Fla.Stat. 40.01(3) (1965),
F.S.A.; Hawaii Rev.Stat. 6091(3) (1968); Ill.Rev.Stat., c. 78, 2 (1967)
('fair character'); Iowa Code 607.1 (1966); Kan.Stat.Ann. 43102
(1964); Ky.Rev.Stat. 29.025 (1962) ('temperate, discreet, and of good
demeanor)'; Me.Rev.Stat.Ann., Tit. 14, 1254 (1964); Neb.Rev.Stat. 25
1601(1) (1964) ('fair character'); N.Y. Judiciary Law, McKinney's Consol.
Laws, c. 30, 504(4) (Supp. 1969); Okla.Stat.Ann., Tit. 38, 28 (Supp. 1969);
S.C.Code Ann. 3852 (Supp. 1968); Tex.Rev.Civ.Stat.Ann., Art. 2133(2)
(1964); Wis.Stat.Ann. 255.01(5) (Supp. 1969).
Another phrase frequently found is 'approved integrity.' E.g.,
Conn.Gen.Stat.Rev. 51217 (1968); Fla.Stat. 40.01(3) (1965), F.S.A.;
Ill.Rev.Stat., c. 78, 2 (1967); Kan.Stat.Ann. 43102 (1964);
Me.Rev.Stat.Ann., Tit. 14, 1254 (1964); Neb.Rev.Stat. 251601(1) (1964).
See also Ariz.Rev.Stat.Ann. 21201 (1956) ('sober'); Md.Ann.Code, Art. 51,

 9 (Supp. 1968) ('integrity'); Miss.Code Ann. 176202 (Supp. 1968) (not a

'habitual drunkard'); Mo.Ann.Stat. 494.010 (Supp. 1969) ('sober');
Okla.Stat.Ann., Tit. 38, 28 (Supp.1969) (not a habitual drunkard); Tenn.Code
Ann. 22102 (1955) (same); W.Va.Code Ann. 5212 (1966) (same);
cf. N.H.Rev.Stat.Ann. 500:29 (1968 Repl.Vol.) (disqualification on account
of 'vicious habits'); Wash.Rev.Code 2.36.110 (1959) ('unfit persons' must be
excused).
32

Ariz.Rev.Stat.Ann. 21201 (1956); Cal.Civ.Proc.Code 198 (1954);

Fla.Stat. 40.01(3) (1965), F.S.A.; Hawaii Rev.Stat. 6091(3) (1968);
Md.Ann.Code, Art. 51, 9 (Supp.1968); Mo.Ann.Stat. 494.010 (Supp. 1969);
Mont.Rev.Codes Ann. 93 1301(2) (1964 Repl.Vol.); Neb.Rev.Stat. 25
1601(1) (1964); N.Y. Judiciary Law 596(5) (1968) (only for cities of one
million in population); Wyo.Stat.Ann. 177(2) (Supp. 1969). See also
Conn.Gen.Stat.Rev. 51217 (1968) ('sound judgment'); Fla.Stat. 40.01(3)
(1965) F.S.A. (same); Ill.Rev.Stat., c. 78, 2 (1967) (same); Iowa Code
607.1 (1966) (same); Me.Rev.Stat.Ann., Tit. 14, 1254 (1964) (same);
N.D.Cent.Code 270901 (1960) ('sound mind and discretion');
Okla.Stat.Ann., Tit. 38, 28 (Supp. 1969) (same); S.C.Code Ann. 3852
(Supp. 1968) ('sound judgment'); Utah Code Ann. 78468(5) (1953)
('sound mind and discretion'); Wis.Stat.Ann. 255.01(5) (Supp. 1969) ('sound
judgment').

33

Ill.Rev.Stat., c. 78, 2 (1967); Kan.Stat.Ann. 43102 (1964);

Me.Rev.Stat.Ann., Tit. 14, 1254 (1964); Neb.Rev.Stat. 251601(1) (1964);
see Conn.Gen.Stat.Rev. 51217 (1968) ('fair education'). See Note, The
Congress, The Court and Jury Selection: A Critique of Titles I and II of the
Civil Rights Bill of 1966, 52 Va.L.Rev. 1069, 10721073 (1966) (collecting
ref.).

34

218 U.S. 161, 30 S.Ct. 640, 54 L.Ed. 980.

35

218 U.S., at 167168, 30 S.Ct. at 642.

36

311 U.S. 128, 61 S.Ct. 164.

37

See Akins v. Texas, 325 U.S. 398, 402403, 65 S.Ct. 1276, 12781279, 89
L.Ed. 1692 and n. 3.

38

311 U.S., at 130131, 61 S.Ct. at 165. (Footnote omitted.) Cf. Hernandez v.

Texas, 347 U.S. 475, 478479, 74 S.Ct. 667, 670671, 98 L.Ed. 866, and
Cassell v. Texas, supra, 339 U.S. at 284, 70 S.Ct. at 630, where no challenge
was made to the statutory scheme.

39

From the earliest consideration of racial ciscrimination in jury selection, the

Court has consistently distinguished, for purposes of determining the
removability of a state criminal proceeding to a federal court, between a statute
expressly excluding Negroes from jury service and one neutral on its face with
respect to race but challenged as discriminatorily applied. Compare Murray v.
Louisiana, 163 U.S. 101, 105106, 16 S.Ct. 990, 991992, 41 L.Ed. 87;
Smith v. Mississippi, 162 U.S. 592, 600, 16 S.Ct. 900, 903, 40 L.Ed. 1082;
Gibson v. Mississippi, supra, 162 U.S. at 579586, 16 S.Ct. at 906908;
Bush v. Kentucky, supra, 107 U.S. at 116, 1 S.Ct. at 630; Neal v. Delaware,
supra, 103 U.S. at 386393; Virginia v. Rives, supra, 100 U.S. at 318323,
with Strauder v. West Virginia, supra, 100 U.S. at 310312. See City of
Greenwood v. Peacock, 384 U.S. 808, 827828, 86 S.Ct. 1800, 1812 1813, 16
L.Ed.2d 944; Georgia v. Rachel, 384 U.S. 780, 797804, 86 S.Ct. 1783, 1792
1796, 16 L.Ed.2d 925.

40

See Ala.Pen.Code of 1841, c. X, 1, 3.

41

Such considerations distinguish the present case from Louisiana v. United

States, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709, where we invalidated a
provision of the Louisiana Constitution that vested in the State's voting
registrars 'a virtually uncontrolled discretion as to who should vote and who
should not,' and that had been abused 'to deprive otherwise qualified Negro
citizens of their right to vote * * *.' 380 U.S., at 150, 85 S.Ct., at 820. The
District Court found that the constitutional provision, as written and as applied,
was 'part of a successful plan to deprive Louisiana Negroes of their right to
vote.' 380 U.S., at 151, 85 S.Ct. at 821, aff'g 225 F.Supp. 353, 356, 363381.
Cf. South Carolina v. Katzenbach, 383 U.S. 301, 312 313, 86 S.Ct. 803, 810
811, 15 L.Ed.2d 769; United States v. Mississippi, 380 U.S. 128, 131136,
143144, 85 S.Ct. 808, 809 812, 816817, 13 L.Ed.2d 717; Alabama v.
United States, 371 U.S. 37, 83 S.Ct. 145, 9 L.Ed.2d 112, per curiam, aff'g 304
F.2d 583, 584589, aff'g 192 F.Supp. 677; Schnell v. Davis, 336 U.S. 933, 69
S.Ct. 749, 93 L.Ed. 1093, per curiam, aff'g 81 F.Supp. 872, 876, 878880.

42

In Louisiana v. United States, supra, the District Court held the challenged
constitutional provision invalid per se on the basis of its finding that in view of
the provision's 'vote-abridging purpose and effect,' its vices could not be cured
by an injunction prohibiting its unfair application. 225 F.Supp., at 391, aff'd,
380 U.S., at 150, 85 S.Ct., at 820 and n. 9. Cf. Davis v. Schnell, 81 F.Supp., at
877.

43

The District Court granted a motion to quash the subpoena served on the
Governor when it appeared that the appellants had failed to tender him his fees.
See Fed. Rule Civ.Proc. 45(c).

44

Moore v. Henslee, 8 Cir., 276 F.2d 876, 878879; cf. Swain v. Alabama,
supra, 380 U.S. at 208, 85 S.Ct. at 829; Cassell v. Texas, supra, 339 U.S. at
291, 70 S.Ct. at 633 (Frankfurter, J., concurring in judgment); Akins v. Texas,
supra, 325 U.S. at 403, 65 S.Ct. at 1279; Martin v. Texas, supra, 200 U.S. at
320 321, 26 S.Ct. at 339; Gibson v. Mississippi, supra, 162 U.S., at 580, 16
S.Ct. at 906; Bush v. Kentucky, supra, 107 U.S. at 117, 1 S.Ct. at 631; Neal v.
Delaware, supra, 103 U.S. at 394; Virginia v. Rives, supra, 100 U.S., at 323; see
Hoyt v. Florida, 368 U.S. 57, 59, 69, 82 S.Ct. 159, 161, 166, 7 L.Ed.2d 118.

45

See 298 F.Supp., at 193.

46

Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 822. Cf. Alabama
v. United States, 5 Cir., 304 F.2d 583. 590 591, aff'd, 371 U.S. 37, 83 S.Ct. 145
(per curiam). Of particular relevance is the decree drawn by District Judge
Johnson in Mitchell v. Johnson, in the District Court for the Middle District of
Alabama, 250 F.Supp. 117, 123124:
'The relief to be afforded in this case will involve not only the issuance of a
prohibitory injunction, but an injunction requiring immediate affirmative action
by the jury commissioners by their emptying the * * * County jury box,
abandoning the present * * * jury roll without any further use of either, and by
their compiling a jury roll and refilling the jury box in strict accordance with
the law of Alabama and the constitutional principles herein set forth. * * * In
remedying this wrong, the defendants are cautioned that if they apply
Alabama's qualifications for jury serviceparticularly that qualification
relating to good character and sound judgment and that qualification concerning
the requirement that prospective jurors be able to read Englishthese
qualification requirements must be imposed fairly and objectively and
administered to all regardless of race, in a nondiscriminatory manner. * * *
'Failure on the part of the defendants to comply immediately and in good faith
with the requirements of this opinion and order will necessitate the appointment
by this Court of a master or panel of masters to recompile the jury roll and to
empty and refill the * * * jury box.' (Footnotes omitted.)
Accord: Pullum v. Greene, 5 Cir., 396 F.2d 251, 257; Turner v. Spencer, D.C.,
261 F.Supp. 542, 544; White v. Crook, D.C., 251 F.Supp. 401, 409410.

The Civil Rights Act of 1964, 703, 78 Stat. 255, 42 U.S.C. 2000e2(a), 78
Stat. 255 makes it unlawful for an employer on a federally financed project 'to
limit, segregate, or classify' his employees because of race. In commenting on
the Philadelphia Plan, regulating employment on federally financed
construction jobs, the Washington Post stated:

'Quotas are understandably abhorrent to those seeking to do away with

discrimination. A quota in this context means a ceiling. Some years ago, when
colleges were accused of discriminating against religious minorities in their
admission policies, they fixed quotas in percentage terms for these minorities
based upon their ratio to the general population and not upon their ability to
meet competitive entrance tests; these quotas then became a maximum for the
admission of minority group students. The goals embodied in the Philadelphia
Plan constitute a floor, not a ceiling, a minimum rather than a maximum; they
constitute an agreement to enlarge job opportunities for minority workers, not
restrict them; and so they are in complete conformity with the essential spirit
and purpose of the Civil Rights Act.' Jan. 14, 1970, p. A18.
2

The Constitution of India contains provisions for her economically and

educationally deprived classes, including the untouchables. Article 15(4)
provides: 'Nothing in this article or in clause (2) of Article 29 shall prevent the
State from making any special provision for the advancement of any socially
and educationally backward classes of citizens or for the Scheduled Castes and
the Scheduled Tribes.' This provision was added to the Constitution by a 1951
amendment, the object of which was to override the decision in State of Madras
v. Dorairajan, All India Rptr. 1951 Sup.Ct. 226, and to make it constitutional
for the State to reserve seats for backward classes of citizens and Scheduled
Castes and Tribes in public educational institutions, or to take other similar
action for their advancement.
Article 16(4), relating to public employment, provides: 'Nothing in this article
shall prevent the State from making any provision for the reservation of
appointments or posts in favour of any backward class of citizens which, in the
opinion of the State, is not adequately represented in the services under the
State.' The objective of 'adequate representation' applies not merely to lower
government positions, but to all levels of government office. See General
Manager, S.R. Co. v. Rangachari, All India Rptr. 1962 Sup.Ct. 36.
Articles 330 and 332 provide for the reservation of seats for Scheduled Castes
and Scheduled Tribes, except for the Scheduled Tribes in the tribal areas of
Assam, in the House of the People and the legislative assembly of every State.
Article 331 provides for the nomination of not more than two members of the
Anglo-Indian community if the President is of the opinion that the community
is not adequately represented in the House of the People. The reservation of
seats mentioned above and the nomination of members of the Anglo-Indian
community is to cease after 20 years, viz., January 1970. A constitutional
amendment extending that time is now before the national parliament and the
legislatures of the several States. See Indian & Foreign Review, Jan. 1, 1970, p.
7.